TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1055374

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER LEE

AM2017/42

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2017/42)

Restaurant Industry Award 2010

Sydney

10.03 AM, THURSDAY, 16 NOVEMBER 2017

PN1

VICE PRESIDENT HATCHER:  Yes, I'll take appearances.  Mr Duc, you appear for Restaurant & Catering Industrial?

PN2

MR A DUC:  Thank you, your Honour.

PN3

VICE PRESIDENT HATCHER:  Mr Dowling, you appear with Ms Burke for United Voice.

PN4

MR C DOWLING:  Yes, good morning, members of the Commission.

PN5

VICE PRESIDENT HATCHER:  All right.  The Full Bench has noted the correspondence received from Restaurant & Catering Australia, but it raises a question as to on what basis we now conclude the review, that is, we had the penalty rates decision which indicated a provisional outcome but gave Restaurant and Catering Industrial a further opportunity.  It's now made a decision not to pursue that opportunity.  Are we now in a position to conclude that at least insofar as the penalty rate provisions of the award are concerned the provisions meet the modern awards objective and the review is concluded?  Mr Duc?

PN6

MR DUC:  That's so.  The common issue of the penalty rates from RCI's point of view should be concluded.

PN7

VICE PRESIDENT HATCHER:  We need to form a conclusion that the provisions are consistent with the modern awards objective.  Is there anything else preventing us from forming that conclusion?

PN8

MR DUC:  No, your Honour.

PN9

VICE PRESIDENT HATCHER:  Mr Dowling?

PN10

MR DOWLING:  Not from our part, your Honour.  Can we just be clear in terms of the form?  There are two proceedings, as we understand it.  There's AM2014/305, which is the four‑yearly review penalty rates, and in respect of that proceeding, given what Mr Duc has said we understand the appropriate order in that matter should be a determination that that review is complete.

PN11

VICE PRESIDENT HATCHER:  Yes.

PN12

MR DOWLING:  The other matter is AM2017/42, which is that proceeding that was separately established through this Bench to deal with the application that had been made and is now discontinued.  In respect of that matter, it was our view that perhaps the most that can be done is Mr Duc formally withdraws any application made in AM2017/42, then there's nothing further in that proceeding and, as I said, in AM2014/305 the review is complete.

PN13

VICE PRESIDENT HATCHER:  Am I wrong in saying that both matters are part of the four‑yearly review?  So I'm not sure the division of them into different proceedings is of all that much significance.  It's a question of whether we conclude the review on a proper basis, that is, we're now in a state where we can say on the material before us we're satisfied that the penalty rate provisions meet the modern awards objective and there's no further need to look at these provisions as part of this four‑yearly review.

PN14

MR DOWLING:  I think that's right, your Honour.  I was just concerned that AM2017/42 might be left floating around in some way.

PN15

VICE PRESIDENT HATCHER:  No.

PN16

MR DOWLING:  But if your Honour is satisfied that an order that the penalty rates review is complete, deals with both 2017/42 and 2014/305, we're certainly satisfied.

PN17

VICE PRESIDENT HATCHER:  All right.  Is there anything you want to add, Mr Duc?

PN18

MR DUC:  No, your Honour.

PN19

VICE PRESIDENT HATCHER:  All right.  We will in due course issue a short decision to that effect.  I thank counsel for their attendance and we'll now adjourn.

ADJOURNED INDEFINITELY                                                        [10.06 AM]